Report in which the committee requests to be kept informed of development - Report No 344, March 2007

Case No 2479 (Mexico) - Complaint date: 03-MAR-06 - Closed

Allegations: The complainant alleges that, following a ruling (later declared null and void) cancelling its registration as a trade union,

1. 41 teachers were dismissed and have not been reinstated
2. 1041. This complaint appears in communications dated 2, 5 and 8 March, 8 May and 23 July 2006 from the Academic Trade Union of Workers of the Technical Vocational Training College of the State of San Luis Potosí (SATTCONALEP-SLP).
3. 1042. The Government sent its observations in a communication dated 3 October 2006.
4. 1043. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1044. In its communications dated 2, 5 and 8 March 2006 the SATTCONALEP-SLP states that, on 1 January 2005, the Local Conciliation and Arbitration Board authorized the registration of the trade union organization. It alleges that, ever since then, the college authorities have harassed the teachers who are members of the union. This harassment has involved reducing their teaching hours, threats and actual dismissals. Moreover, the college requested that the union’s registration be cancelled on the grounds that its members were not workers but service providers. The complainant organization explains that in 1998 the concept of “teacher” was removed from the college structure and replaced by “service provider”, as the professionals concerned, in exercising their skills and abilities, were said to be transmitting their experience. As time went by, the new concept was found to be untenable and a staff of teachers evolved who gradually acquired seniority and a status of subordination and dependency, which are the hallmarks of an employment relationship. The contracts of these teachers are determined unilaterally by the director and renewed each semester.
2. 1045. On 18 August 2005, the very day that the trade union was informed that its registration had been cancelled, the college dismissed 41 teachers who had set up the trade union.
3. 1046. The trade union organization lodged amparo proceedings for the protection of constitutional rights (No. 837/2005, Ninth Circuit Collegiate Tribunal) against the Board’s ruling cancelling the union’s registration, in defence of the teachers’ trade union immunity. On 11 February 2006, the court ruled that the contracts between the teachers and the college themselves constituted an employment relationship with the union members. It therefore ordered the Board to declare its earlier ruling null and void and to issue a new ruling recognizing the union’s registration.
4. 1047. In its communications dated 8 May and 23 July 2006, SATTCONALEP-SLP adds that, on 7 April 2006, the Local Conciliation and Arbitration Board recognized its existence. However, the college has not reinstated the 41 dismissed teachers, some of whom are union officials. The complainant adds further that, together with other Mexican unions, it has established the National Federation of Academic Trade Unions of CONALEP (FENSACONALEP).
5. B. The Government’s reply
6. 1048. In its communication dated 3 October 2006, the Government states that the facts denounced by SATTCONALEP-SLP do not constitute a violation of freedom of association. The Government corroborates the union’s statement that the Local Conciliation and Arbitration Board of the State of San Luis Potosí complied with the enforcement order of the Second Collegiate Tribunal of the Ninth Circuit which, ruling on a matter of trade union immunity, declared the cancellation of SATTCONALEP-SLP’s registration to be null and void.
7. 1049. With regard to the dismissal of 41 teachers, the Government points out that Mexico’s legal system contains the necessary provisions and machinery for requesting the reinstatement of dismissed workers and the payment of their corresponding benefits.

C. The Committee’s conclusions

1. 1050. The Committee observes that in the present case the SATTCONALEP-SLP alleges that, since it has been registered as a trade union organization, the college has engaged in discrimination against its members by reducing their teaching hours, threatening them with dismissal and actually dismissing 41 teachers as soon as the union’s registration was cancelled by the Local Conciliation and Arbitration Board, which had previously granted it. The Committee notes that, according to the complainant organization, the cancellation of its registration was requested by the college on the grounds that teachers are not workers but service providers.
2. 1051. The Committee notes that the Collegiate Tribunal of the Ninth Circuit considered that the contract itself was indicative of the existence of an employment relationship and ordered the Local Conciliation and Arbitration Board to declare its ruling cancelling the registration null and void. The Committee further notes that on 7 April 2006, the Local Conciliation and Arbitration Board recognized the existence of SATTCONALEP-SLP. The Committee notes, however, that the 41 teachers have not been reinstated in their posts and that the Government points out in this respect that Mexico’s legal system contains the necessary provisions and machinery for requesting such reinstatement. The Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 771]. In these conditions, given that the 41 teachers of the Technical Vocational Training College of the State of San Luis Potosí who were dismissed on account of their trade union activities following the cancellation of SATTCONALEP-SLP’s registration have not yet been reinstated despite the fact that the trade union has been recognized, the Committee requests the Government to take the necessary steps for the said teachers to be reinstated in their posts without delay, with the payment of wages due, to ensure that the members of the trade union organization are not discriminated against by reason of their legitimate trade union activities and to keep it informed in this respect. Moreover, the Committee requests the Government to inform it if any proceedings have been instituted in order to reinstate the dismissed workers in conformity with national legislation.

The Committee's recommendations

1. 1052. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Given that the 41 teachers of the Technical Vocational Training College of the State of San Luis Potosí who were dismissed on account of their trade union activities following the cancellation of SATTCONALEP-SLP’s registration have not yet been reinstated, despite the fact that the trade union has been recognized, the Committee requests the Government to take the necessary steps for the said teachers to be reinstated in their posts without delay, with the payment of wages due, to ensure that the members of the trade union organization are not discriminated against by reason of their legitimate trade union activities and to keep it informed in this respect. Moreover, the Committee requests the Government to inform it if any proceedings have been instituted in order to reinstate the dismissed workers in conformity with national legislation.